Tag Archives: Timekeeping

The Plaintiffs, Certified Nursing Assistants (“CNAs”) for Defendant, claimed that they were required to work off the clock during automatically deducted meal breaks, during mandatory meetings and training sessions, and while performing mandatory data entry known as “dart charting.” The result of these policies was to allegedly deny the Plaintiffs wages and overtime. After the Plaintiffs amended their Complaint the Defendants filed a motion to dismiss regarding several of Plaintiffs’ allegations. As discussed here, the court denied Defendants’ motion as it pertained to Plaintiffs’ claims arising from Defendants’ policy of rounding their time to the nearest quarter of an hour, regardless of actual time worked.

Discussing the sufficiency of the rounding claim, the court explained:

“One of the Plaintiffs’ substantive allegations is that the Defendants have a practice of “reduc[ing] [their] employees’ work hours by rounding their hours to the nearest quarter hour of time to their detriment (i.e., the rounding did not average out to equally benefit Defendants and its employees over time) which results in Defendants not paying its employees for all time worked.” Doc. 51 at ¶ 112. Defendants cite federal regulations which expressly allow the practice of rounding to the nearest 15–minute increment. 29 C.F.R. § 785.48(b) (“For enforcement purposes this practice of [rounding to 5, 10 or 15–minute increments] will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.”). The Defendants submit Harding v. Time Warner, Inc. in support of their position that the Plaintiffs have not sufficiently pled a claim of improper rounding. No. 09cv1212–WQH–WMC, 2010 WL 457690 (S .D.Cal. Jan. 26, 2010). In Harding, the court found that, despite describing the allegedly improper rounding procedures in detail, Harding had failed to provide “specific factual allegations” showing that employees had been underpaid. Id. at *5. The Plaintiffs provided the following statements regarding rounding in their Amended Complaint:

112. Defendants further reduce its [sic] employees’ work hours by rounding their hours to the nearest quarter hour of time to their detriment (i.e., the rounding did not average out to equally benefit Defendants and its [sic] employees over time) which results in Defendants not paying its [sic] employees for all time worked. This practice results in Plaintiffs and all other similarly situated employees being denied wages including overtime premiums and Defendants’ illegal rounding practices are not de minimus. [sic]

113. Even though Defendants had a computerized timekeeping system in place and could have easily recognized and paid Plaintiffs’ and other similarly situated employees’ actual hours worked, Defendants deliberately disregarded the system’s records and rounded Plaintiffs’ and other similarly situated employees work time down to the nearest quarter of an hour.”

114. Defendants willfully and illegally rounded Plaintiffs’ and other similarly situated employees’ work time down to the nearest quarter of a [sic] hour.

Doc. 51 at ¶¶ 112–14 (legal conclusions in bold). Iqbal requires “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. The Plaintiffs allege that the rounding did not average out properly. They further allege that the Defendants maintain a computerized system which keeps time, but still chose to use rounding. Assuming the truth of these allegations, the Court can plausibly infer that the Defendants chose to round time because it would be more favorable than paying for actual time worked on a minute by minute basis, thus violating the averaging rationale inherent to rounding. While the Plaintiffs could have chosen to state more, to require them to plead, for example, specific minutes on specific days for which they were denied wages would be fact pleading inconsistent with Iqbal. Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir.2010) (noting that “Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2)”). The Defendants’ Motion to dismiss the Plaintiffs’ rounding claim is DENIED.”

These proceedings were before the Multi District Panel, pursuant to 28 U.S.C. § 1407. The defendants (Foot Locker) moved to centralize several pending cases, all arising from similar claims, in the Eastern District of Pennsylvania. At the time Foot Locker’s motion was made four actions were pending in four districts. Plaintiffs in all actions oppose centralization. Notwithstanding the opposition of all plaintiffs in all cases, the Panel granted Foot Locker’s motion.

Largely breaking from its prior jurisprudence (in granting the motion over opposition of multiple parties), the Panel reasoned:

“On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. No party disputes that these actions share factual questions arising out of allegations that Foot Locker routinely fails to pay retail employees wages for work they performed. These actions allege that (1) the timekeeping system used by Footlocker allows managers to modify or decrease the time recorded; and (2) Footlocker’s bonus policy encourages managers to force employees to work off-the-clock and to delete time recorded. As in In re Bank of America Wage and Hour Employment Practices Litigation, it appears that defendants’ timekeeping and labor budgeting policies and practices are corporate-wide and uniformly applied. See706 F.Supp.2d 1369, 1371 (J.P.M.L.2010). Discovery among these actions regarding defendants’ corporate labor budgeting and timekeeping policies therefore will overlap. This litigation, like In re Bank of America, is distinguishable from wage and hour dockets “in which the Panel has denied centralization, because the duties of the employees at issue appeared to be subject to significant local variances.” Id. at 1371, n.3 (citing In re Tyson Foods, Inc., Meat Processing Facilities Fair Labor Standards Act (FLSA) Litig., 581 F.Supp.2d 1374, 1375 (J.P.M.L.2008)).

Plaintiffs’ primarily argue that informal coordination is preferable to centralization since only four actions are pending and plaintiffs are represented by common counsel. Plaintiffs make a strong case against centralization but, on balance, particularly given the likely overlap in discovery and pretrial proceedings, we are persuaded that centralization will promote the just and efficient conduct of this litigation. Though a large number of actions are not presently before the Panel, also weighing in favor of centralization is that additional related actions alleging similar class claims in other states could well be filed. Centralization in these circumstances will have the benefit of eliminating duplicative discovery; preventing inconsistent pretrial rulings, including with respect to class certification; and conserving the resources of the parties, their counsel, and the judiciary.

We are persuaded that the Eastern District of Pennsylvania is the most appropriate transferee district. The first-filed Pereira action has been pending there since May 2007, and Judge J. Curtis Joyner is familiar with the issues in this litigation. Although the Pereira action has been pending for some time, discovery is ongoing and, given that plaintiffs in all actions are represented by common counsel, plaintiffs will not be prejudiced by transfer to the Eastern District of Pennsylvania.”

Thus, although the Panel noted that the plaintiffs made a “strong case” against centralization, it centralized the case nonetheless.

The Advisory Council on Employee Welfare and Pension Benefit Plans, also known as the ERISA Advisory Council, will hold a meeting Aug. 18-20 in Washington at the Liaison Capitol Hill Hotel at 415 New Jersey Avenue NW, Washington, DC. The meeting will begin at 9 a.m. and end at approximately 5:30 p.m. on Aug. 18 and 19, with a one-hour break for lunch each da […]

For more than a decade, the U.S. government has been championing efforts to reduce child labor in West African cocoa production, providing vulnerable children in cocoa-growing areas with better access to education and vocational training, and their families with support so they can better provide for themselves and meet their basic needs without relying on c […]

In the week ending July 25, the advance figure for seasonally adjusted initial claims was 267,000, an increase of 12,000 from the previous week's unrevised level of 255,000. The 4-week moving average was 274,750, a decrease of 3,750 from the previous week's unrevised average of 278,500.